Britain Denies Pinochet Immunity
By T. R. Reid
Sending a shocking birthday message on the day Pinochet turned 83, a five-member panel of the Law Lords ruled 3 to 2 that the "sovereign immunity" enjoyed by former heads of state does not apply to charges of torture or holding hostages.
Experts described the ruling as a watershed in the developing field of human rights law, and said the impact would not be restricted to Pinochet or to Chile.
"This is a message to all murdering regimes," said David Bull, head of the British arm of Amnesty International. "It says, 'Stop now. You can be brought to justice.' "
The decision, which was broadcast by Chilean television, sparked emotional reactions in Santiago, the capital, where police used water cannon and plastic riot shields to control thousands of anti- and pro-Pinochet demonstrators. [Details on Pages A60 and A61.]
Pinochet was an army general who seized power in a coup in 1973. He has been charged with the abduction, torture or murder of thousands of his political opponents during 17 years as president.
It was an essential element of today's decision that Pinochet is a former head of state, not an incumbent. The Law Lords said former sovereigns have narrower legal immunity than sitting rulers. The result, as Pinochet's lawyers noted acidly, is that he is vulnerable to prosecution only because he stepped down to make way for a democratic government in 1990.
Pinochet has the protection of a legal amnesty in Chile, but several other countries have sought to try him on charges of murdering their nationals while in power. Spain was the first to ask for extradition, and it is the Spanish request that will go forward.
In Britain, the Pinochet case will now follow two parallel tracks, one political and one legal.
Politically, the man on the spot will be Home Secretary Jack Straw, roughly the equivalent of the U.S. attorney general. He has broad discretion under the law to stop the extradition proceedings at any time and let Pinochet go home to Chile. Straw today asked all interested parties -- Pinochet, the Chilean government, the Spanish government, human rights groups -- to submit arguments for his consideration.
The early betting here was that Straw would not block extradition. The governing Labor Party, the most liberal of Britain's major parties, has been closely aligned with human rights groups that have been trying for years to bring Pinochet to justice.
On the legal track, the former president, who now holds the position of senator-for-life in Chile, evidently will have to appear soon at the Bow Street Magistrate's Court, which normally spends its days ruling on the expulsion of illegal aliens and international drug couriers.
The magistrates at Bow Street will hear arguments from Spanish authorities seeking the right to take Pinochet to Madrid for trial on charges of torture and genocide. Pinochet's lawyers presumably will argue that British law does not permit extradition for the crimes Spain has alleged.
Pinochet can appeal any ruling of the Magistrate's Court, and the process easily could stretch out to his 84th birthday. Unless the home secretary intervenes, Pinochet will not be permitted to leave Britain during that time. He probably will be allowed to wait out the proceedings in a hospital or hotel room, not a jail.
Pinochet, who has said that staying in five-star London hotels is one of the greatest pleasures of human existence, came to London on a visit in September. While here, he entered a private clinic for a back operation. It was nearly midnight on Oct. 16 when police came to his hospital room and informed him that he was under arrest, pending action on an extradition warrant from Spain.
Pinochet persuaded an intermediate court to void his arrest on the basis of "sovereign immunity." But today, just six weeks after the startling chain of events began, the Law Lords said he is not immune from legal process in this country.
There were two decisive elements in the majority holding today. First, it was crucial that Pinochet is a former president. All five Lords agreed, as Lord Steyn's opinion put it, "If Gen. Pinochet had still been head of state of Chile, he would be immune" from any legal proceedings in Britain.
A former head of state, however, has a limited immunity, the Lords concluded. He cannot be charged for any act that was a "legitimate function of government," but he can be forced to answer in court for actions that international law would consider illegitimate.
Citing international conventions outlawing torture and hostage-taking, Lord Nicholls said "torture of his own subjects, or of aliens, would not be regarded by international law as a function of the head of state. All states disavow the use of torture as abhorrent, although from time to time some still resort to it. . . . Similarly, the taking of hostages . . . has been outlawed by the international community.
"This applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law."
The decision, which was read out in the gilded chamber of the House of Lords, sparked an explosion of unreserved joy on the streets just outside the halls of Parliament.
Chilean exiles and human rights activists had been waiting in the rain, now and then breaking into dispirited chants of "genocido" (genocidist) and "asesino" (murderer). As soon as they heard the decision, the crowd burst into wild shouts of glee, dancing in the streets and roaring out a new chant: "Victoria! Victoria!"
There was no immediate statement from Pinochet, who received a large birthday cake today at the hospital where he is recuperating from his surgery. The Chilean Embassy here challenged the Lords' ruling, but Ambassador Mario Artaza took pains not to defend the controversial former president.
"We are not here to protect a dictator of yesterday," the ambassador said. "We are here to protect and defend our transition to democracy." To help that process, he said, Pinochet should be returned to Chile immediately. Chile's foreign minister is to come here next week to argue the case.
Former British prime minister Margaret Thatcher, a friend of Pinochet's, also demanded that he be allowed to go home. She called on Straw to show "compassion . . . for a sick and aged man."
© Copyright 1998 The Washington Post Company